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CHAPTER 3.

LIMITATIONS-REAL PROPERTY.

2856. Action by state. Seven years. The state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the state to the same, unless:

1. Such right or title shall have accrued within seven years before any action or other proceeding for the same shall be commenced; or,

2. The state or those from whom it claims, shall have received the rents and profits of such real property, or some part thereof, within seven years. L. § 3130.

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2857. Claiming under grants from state. Action by grantee of state. Seven years. No action can be brought for or in respect to real property by any person claiming under letters patent or grants from this state, unless the same might have been commenced by the state as herein specified, in case such patent had not been issued or grant made.

Cal. C. Civ. P. 316. Mont. C. Civ. P. 481.

2858. Action against grantee under void grant. Seven years. When letters patent or grants of real property issued or made by the state, are declared void by the determination of a competent court, an action for the recovery of the property so conveyed may be brought either by the state or by any subsequent patentee or grantee of the property, his heirs or assigns, within seven years after such determination, but not after that period. Cal. C. Civ. P. 317. Mont. C. Civ. P. 2 482.

2859. Action to recover real property. Seven years. No action for the recovery of real property, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor was seized or possessed of the property in question within seven years before the commencement of the action. [C. L. § 3131.

Cal. C. Civ. P. 318.

Statute of limitations does not begin to run against patentee of land from United States before issuance of patent. Steele v. Boley, 7 U. 64; 24 P.

755; overruling same case, 6 U. 308; 22 P. 311Statute runs in favor of party claiming a life estate. Wells v. Wells, 7 U. 68; 24 P. 752.

2860. Id. Action or defense founded on realty. Seven years. No cause of action, or defense or counterclaim to an action, founded upon the title to real property or to rents or profits out of the same, shall be effectual unless it appears that the person prosecuting the action, or interposing the defense or counterclaim, or under whose title the action is prosecuted or defense or counterclaim is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the property in question within seven years before the committing of the act in respect to which such action is prosecuted or defense or counterclaim made. [C. L. § 3132*.

Cal. C. Civ. P. 319. N.Y. Civ. P. 366*. N. Dak. (1895)5189*.

2875.

Limitation on action for mesne profits, This section applies to suit for accounting by cestui que trust against trustee of real property,

who has repudiated the trust, and begins to run from time of such repudiation becoming known to plaintiff. Wood v. Fox, 8 U 380; 32 P. 48. Case affirmed, 166 U. S. 648.

2861. Possession presumed in legal owner, unless adversely held. Seven years. In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property shall be presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that the property

has been held and possessed adversely to such legal title for seven years before the commencement of the action. [C. L. § 3133.

Cal. C. Civ. P. ? 321*.

Where a divorced wife under a void decree, came into possession of real estate, and remained in possession as a feme sole for the full time of the statute of limitations; held, that she acquired title by adverse possession. Warr v. Honeck, 8 U. 61; 29 P. 1117. Where the surviving wife has a life estate

in her husband's homestead, the character of her possession may be changed by a parol partition so as to make her possession adverse. Whittemore v. Cope, 11 U. 344; 40 P. 256. Adverse possession must be satisfactorily and definitely established. Needham v. Salt Lake City, 7 U. 319; 26 P. 920.

2862. Adverse possession under decree, etc. What deemed held. Whenever it shall appear that the occupant, or those under whom he claims, entered into possession of the property under claim of title exclusive of other right, founding such claim upon a written instrument, as being a conveyance of the property in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the property included in such instrument, decree, or judgment, or of some part of the property under such claim, for seven years, the property so included shall be deemed to have been held adversely, except that when the property so included consists of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. [C. L. § 3134.

Cal. C. Civ. P. † 322a.

Possession must be continuous and taxes paid, 2866.

Where one of the defendants, while employed by plaintiff in working certain mining claims, sought, with the assistance of another defendant, to take

possession of the claim by making a pretended location, and by the use of force; held, that defendants, being mere trespassers without color of title, could not allege the insufficiency of the plaintiff's title by way of defense. Haws v. Victoria Mining Co., 160 U. S., 303; same case, 7 U. 515; 27 P. 695.

2863. What constitutes possession and occupancy. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases:

1.

Where it has been usually cultivated or improved.

2. Where it has been protected by a substantial inclosure.

3.

Where, although not inclosed, it has been used for the supply of fuel or of fencing timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant.

4. Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated. [C. L. § 3135.

Cal. C. Civ. P. 323.

2864. Adverse possession under claim of title only. Land deemed held. Where it appears that there has been an actual continued occupation of land under claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, shall be deemed to have been held adversely. [C. L. § 3136.

Cal. C. Civ. P. 3 324.

Possessory rights, 1967. Occupying claimants, ?? 2021-2028.

2865. Id. What constitutes possession and occupancy. For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

1.

Where it has been protected by a substantial inclosure.

2. Where it has been usually cultivated or improved.

3. Where labor or money has been expended upon dams, canals, embankments, aqueducts, or otherwise, for the purpose of irrigating said lands, amounting to the sum of five dollars per acre. [C. L. § 3137.

Cal. C. Civ. P. ? 325*.

sion hereunder. Harkness v. Woodmansee, 7 U.

Using land merely for road is not adverse posses- 227; 26 P. 291.

2866. Adverse possession must be continuous, and taxes paid. In no case shall adverse possession be considered established under the provisions of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and that the party or persons, their predecessors, and grantors, have paid all taxes, which have been levied and assessed upon such land according to law. [C. L. § 3137.

Cal. C. Civ. P. ¿ 325o.

2867. Possession of tenant, possession of landlord for seven years. When the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of seven years from the termination of the tenancy, or where there has been no written lease, until the expiration of seven years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord; but such presumption cannot be made after the periods herein limited. [C. L. § 3138.

Cal. C. Civ. P. ? 326*.

2868. Right of possession not affected by descent cast. The right of a person to the possession of real property is not impaired or affected by a descent cast in consequence of the death of a person in possession of such property. [C. L. § 3139.

Cal. C. Civ. P. ? 327.

2869. Action to recover estate sold by guardian. Three years. No action for the recovery of any estate sold by a guardian can be maintained by the ward, or by any person claiming under him, unless it is commenced within three years next after the termination of the guardianship. [C. L. § 4360*. Sale of land by guardian, ? 4015.

Cal. C. Civ. P. 2 1806".

2870. Action to recover estate sold by executor, etc. Three years. No action for the recovery of any estate sold by an executor or administrator in the course of any probate proceeding, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after such sale. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud or other lawful grounds upon which the action is based. [C. L. § 4193.

Cal. C. Civ. P. ¿ 1573*.

Sale of land by executor or administrator, 3877.

2871. Legal disability prevents running of statute. Removal. The two preceding sections shall not apply to minors or others under any legal disability to sue at the time when the right of action first accrues, but all such persons may commence an action at any time within one year after the removal of the disability. [C. L. SS 4194*, 4360*.

Cal. C. Civ. P. 22 1574, 1806*.

2872. Id. If a person entitled to commence an action for the recovery of real property, or for the recovery of the possession thereof, or to make any entry or defense founded on the title to real property, or to rents or services out of the same, be at the time such title shall first descend or accrue, either:

Within the age of majority; or.

2. Insane; or,

3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life-the time during which such disability continues is not deemed any portion of the time in this chapter limited for the commencement of such actions, or the making of such entry or defense, but such action may be commenced, or entry or defense made within the period of two years after such disability shall cease, or after the death of the person entitled, who shall die under such disability, but such action shall not be commenced, or entry or defense made after that period. [C. L. § 3140%.

Cal. C. Civ. P. ? 328*.

One year after disability removed, in actions per

sonal, ? 2889. Disaffirmance of contract by minor, 1542.

CHAPTER 4.

LIMITATIONS—OTHER THAN REAL PROPERTY.

2873. Periods prescribed. The periods prescribed for the commencement of actions other than for the recovery of real property, are as hereinafter provided. [C. L. § 3141.

Cal. C. Civ. P. 335.

2874. Action on judgment. Eight years.

Within eight years:

An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States. [C. L. § 3142*; '97, p. 264.

Cal. C. Civ. P. 331.

Judgment a lien for five years, 3198. Execution must issue within five years, ? 3232.

2875. Action on written instrument. Mesne profits. Six years. Within six years:

1. An action for the mesne profits of real property.

2. An action upon any contract, obligation, or liability founded upon an instrument of writing, except those mentioned in the preceding section. [C. L. §§ 3142*-3*; '97, p. 264.

Cal. C. Civ. P. 22 336, 337*.

Limitation on action to recover rents or profits

of real property, 2860. Payment or new promise extends time, 2898.

2876. Action on contract not in writing. Four years. Within four years:

An action upon a contract, obligation, or liability not founded upon an instrument of writing; also on an open account for goods, wares, and merchandise, and for any article charged in a store account; provided, that action in said cases may be commenced at any time within four years after the last charge is made. or the last payment is received. [C. L. § 3145*; '97, p. 264.

Cal. C. Civ. P. † 339*.

Action upon mutual, open, and current account, 22882.

Where a person is entitled to indemnity on a judgment paid by him, the statute commences to run from the time of such payment. Culmer v. Wilson, 13 U. 129; 44 P. 833.

Word "liability" herein does not embrace torts. Thomas v. U. P. Ry. Co., 1 U. 235.

This section applies to a new promise in writing to pay an old account not founded on instrument of writing. Boukofsky v. Powers, 1 U. 333. Gruenberg v. Buhring, 5 U. 414; 16 P. 486. See Anthony v. Savage, 2 U. 466.

payment of the money advanced out of the rents, issues, and profits of a mine, and further provided for the obtaining of the rents, issues, and profits primarily by working the mine, the indebtedness was not due immediately, and the statute did not begin to run until the trust was closed. Charter Oak Ins. Co. v. Gisborn, 5 U. 319; affirmed, 142 U. S., 326.

The statute of limitations in regard to written instruments governs a case where the consignee and another person united in a bond to the consignor conditioned that the former should pay to the latter all moneys which should become due to the consignor under a certain written agreement. Streeper v. Sewing Machine Co., 112 Ü. S. 676; affirming Victor S. M. Co. v. Crockwell et al., 3 U. 152; 1 P. 470. See also Murphy v. Victor S. M. Co., 112 U. S. 688.

Where an insurance policy provided that no suit should be sustainable until after an award should have been made, nor unless such action was commenced within twelve months from the date of the fire, and no time was limited within which the award should be made, and suit was begun more than a year after the fire; held, that it was not barred by the statute of limitations. Hong Sling

When the breach of a contract consists in a failure to pay over money balances due thereunder, the liability falls upon the defaulting party, when such failure occurs, and the statute of limitations begins to run from that time. Victor Sewing Machine Co. v. Crockwell, 2 U. 557. See 112 U. S. 676; Id. 688. An action upon a bond for the payment of indebtedness arising by sales of merchandise upon account, is an action founded upon an instrument of writing. Victor S. M. Co. v. Crockwell, 3 U. 152; 1 P. 470. See Streeper v. Victor S. M. Co., 112 U. S. 676, and Murphy v. Victor S. M. Co., 112 U. S. 688. Where a declaration of trust provided for the 2877. Action for trespass, waste, fraud, etc. Three years. Within three years:

1.

feiture.

2.

v. Royal Insurance Co., 8 U. 135; 30 P. 307.

An action for a liability created by statute, other than a penalty or for

An action for waste or trespass of real property; provided, that when the waste or trespass is committed by means of underground works upon any mining claim, the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting such waste or trespass.

3. An action for taking, detaining, or injuring personal property, including actions for the specific recovery thereof.

4. An action for relief on the ground of fraud or mistake; the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. [C. L. § 3144*.

Cal. C. Civ. P. 338. Mont. Civ. P. 524. Statute begins to run from time owner was deprived of his property, notwithstanding his ignorance of defendant's wrongful act, defendant having practiced no deceit or concealment. v. Hyland, 3 U. 308; 3 P. 388.

Dee

Where the proceedings to enforce a lessor's lien are not instituted until after the time limited by statute, the lien is gone, and thenceforth the lessor's claim possesses no superiority over that of any other person. In re Stone estate, U.: 46 P. 1101.

2878. Action against officer or for death by negligence. Two years. Within two years:

1. An action against a marshal, sheriff, constable, or other officer upon a liability incurred by the doing of an act in his offical capacity, and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution. But this section shall not apply to an action for an

escape.

2. An action to recover damages for the death of one caused by the wrongful act or neglect of another. [C. L. § 3145*; '97, p. 264. Cal. C. Civ. P. ? 339*.

Limitation of action for death of coal miner, 1526. 2879. Action for forfeiture, libel, assault, etc. One year. Within one year:

1. An action upon a statute for a penalty or forfeiture where the action is given to an individual, or to an individual and the state, except when the statute imposing it prescribes a different limitation.

2. An action upon a statute, or upon an undertaking in a criminal action, for a forfeiture or penalty to the state.

3. An action for libel, slander, assault, battery, false imprisonment, or seduction..

4. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned upon either civil or criminal process.

5. An action against a municipal corporation for damages or injuries to property caused by a mob or riot. [C. L. § 3146.

Cal. C. Civ. P. 2 340*.

Limitation on notary's bond, 1668.

2880. Action against officer for seizure or for taxes. Six months. Within six months, an action against an officer, or officers de facto:

1. To recover any goods, wares, merchandise, or other property, seized by any such officer in his official capacity, as tax collector, or to recover the price or value of any goods, wares, merchandise, or other personal property so seized, or for damages for the seizure, detention, sale of, or injury to any goods, wares, merchandise, or other personal property seized, or for damages done to any person or property in making any such seizure.

2. For money paid to any such officer under protest, or seized by such officer in his official capacity, as a collector of taxes, and which, it is claimed, ought to be refunded. [C. L. § 3147.

Cal. C. Civ. P. ¿ 341*.

2881. Action against county on rejected claim. One year. Actions on claims against a county, which have been rejected by the board of county commissioners, must be commenced within one year after the first rejection thereof by such board. [C. L. § 3148.

Cal. C. Civ. P. 2 342*.

Action to be brought within one year after rejection, 533.

In an

2882. Action accrues from last item of mutual account. action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action

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